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Defending Against DRE Testimony in DUID Cases

Every year, more and more officers in Michigan attend the Advanced Roadside Impaired Driving Enforcement (ARIDE) short course followed by a three-week drug recognition program. Thereafter, provided they pass their open book test designed so everyone passes, they will join the ranks to become a highly revered Drug Recognition Expert, or DRE for short. These so-called "experts" then return to their departments and proceed to assist others in the arrest of and the levying of criminal charges against Michigan citizens. The crime is usually DUI or DUID (driving under the influence of drugs). All of this is based on a totally junk-science based 12-step drug recognition procedure.

Most often a DRE is called to the scene of drunk driving investigations by another officer who is stumped because they’ve formed the opinion that a driver is intoxicated, but their roadside breath test was well below the legal limit of showed no alcohol at all. The DRE then comes in to complete the investigation.

Additionally, even not directly involved in an arrest, a DRE may be called as an expert witness to testify about drug-related impairment. This might occur in an operation while intoxicated case (OWI), operating with a presence of controlled substance (OWPCS) or operating while visibly impaired (OWVI) case.

However, a Michigan DUI drug lawyer will know how to cast doubt on the DRE's testimony through skillful cross-examination, and thereby refute the evidence he or she provides.

Non-Scientific Nature

Even though DREs have been around since the 70s, the program really started to take off with the advent of recreational and medical marijuana in many states around the country. Since this time, the various states have received testimony regarding the actual lack of scientific credibility of the DRE protocols.

In these hearings many actual doctors who have been trained in various relevant medical disciplines have testified regarding the fallacious nature of the DRE examination and more broadly, the non-scientific nature of the 12-step process by which DREs evaluate impaired driving suspects. Part of the objections raised is that police officers not medical doctors created the DRE 12 step protocol and training process. One such doctor, Dr. Jeffrey Janofsky, is an associate professor of psychiatry at Johns Hopkins University School of Medicine. He testified that he first reviewed the DRE program all the way back in 1992. Even back then he testified that, try as he may, he could not find even one single peer-reviewed study of the program in any scientific literature.

More importantly, he testified as to his belief that a DRE’s testimony based on their 12 step DRE evaluation, is likely to be flawed and inaccurate. More than that, he testified that in his opinion the DRE program could lead to wrongful DUI convictions.

Another clinical nueropharmacologist, Dr. Francis Gengo, from New York’s DENT institute, testified in a proceeding in Maryland that there was no evidence to support the notion that DREs could distinguish between impairment due to drug use vs impaired because of something medically-related. In other words, a DRE could not do an actual differential diagnosis.

Consequently, Dr. Gengo said in his testimony that a DRE is not adequately qualified to make what is essentially a medical diagnosis. That is, relate a symptom to drug use rather than a symptom of a medical problem or sickness. After all, Dr. Gengo does this for a living, but only after more than 10 years of advanced academic university and hospital-based training.

Drug Test Results as Evidence of Impaired Driving

DRE are trained to believe that their opinions are stronger than a chemical test. So, if they conclude that the person is under the influence of a drug in one of the 7 categories they use, but the chemical test conflicts with this opinion, then the scientific test is simply wrong! This is why prosecutors believe also that a DREs testimony is more valuable and more convincing to judges and juries than chemical drug test results.

For example, assume a person is arrested for DUI based on the consumption of marijuana. There is no legal limit in Michigan, so a test showing 5 ng of THC is relatively meaningless to a jury. What is the solution to ensure a conviction? Bring in a DRE! charge. Then argue that the test result doesn’t matter, because what the DRE observed at the roadside and immediately after the driving back at the station is what matters. This is why Drs. Janofsky and Gengo are correct; a DRE’s testimony can be used by prosecutors to obtain wrongful convictions based on misleading non-scientific but persuasive testimony.

If you are facing a DUI charge based on drugs or a combination of drugs and alcohol, then be sure to hire a DUI expert attorney who can help you defend your case and prevent a wrongful conviction. The DUI lawyers at the Barone Defense Firm are standing by to help. Call today for your FREE no obligation case review.

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